7.6.6 Article 32 TRIPs

Nor does Art. 32 TRIPs limit the board's discretion concerning remittal. In T 557/94 the board held that Art. 32 TRIPs (which provides for the judicial review of any decision to revoke a patent) did not oblige the reviewing instance to remit the case to the department of first instance, where the department of first instance did not revoke the patent and the reviewing instance intended to deviate from the decision of the first instance. Art. 111 EPC 1973 empowered the board to decide on the merits of the case without restriction and it would be alien to at least the majority of legal systems in the EPC contracting states to limit the power of the reviewing instance in such a way that - dependent upon the "result" of the decision under attack - it would be bound to remit the case to the department of first instance. Nor could it be assumed that the states negotiating TRIPs intended the introduction of such a limitation. This was approved in G 1/97 (OJ 2000, 322).

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